Nearly all of us like to kick of the new year with a resolution; get in shape, eat healthier, break a bad habit, manage your money better, the list goes on. The new year gives us all a clean slate and our resolutions motivate us to start the year off right.

For HR professionals, one of the many ways to start the year off right is to make sure all policies in your employee handbooks are up-to-date and compliant with the latest regulations. This will help you strengthen your case in the event that an employee (or former employee) sues you for any type of bias.

When updating your handbook for the new year, employers and HR professionals should look at the following 4 policies first:

FMLA: The U.S. Department of Labor (DOL) has revised FMLA Regulations several times this past year and requires employers to provide employees a notice of their updated FMLA rights in their handbook (or a handout for new hires). If employers fail to do this and an employee files an FMLA suit, failure to notify is the first area lawyers will attack.

Genetic Discrimination: The Genetic Information Nondiscrimination Act (GINA) went into effect late this year prohibiting employers from using genetic information in any employment-related decisions. This means that employers will need to update their handbooks so that genetic information is listed as one of the “protected traits” with EEO status.

Privacy and electronic devices: Many employees may have privacy expectations in their use of company computers. However, courts generally rule that employers can monitor computer and electronic device usage—since these devices are, in fact, company property. Employers may also limit or prohibit certain activities such as sending inappropriate emails or accessing “adult” materials. The handbook is often a very effective way for employers to notify employees of their monitoring practices and prohibited activities.

Social networking: New media such as Facebook, Twitter and blogs have become a part of so many of our lives –both personal and professional. Social networking websites are a great way for companies to get their names out there and solidify their brands in the minds of consumers. However, if any employee makes disparaging remarks about his or her employer on Facebook or blogs about trade secrets, new media can become your company’s worst nightmare.

To combat this, many employers have put social media policies in place. If you have one of these policies, the time is now to make sure it’s in your handbook and up to date.

12/15/2009

When struck with a pandemic flu outbreak, many companies will do one of the following:

Continue working short staffed while employees are out with the flu

Close their businesses for a day, or two, or several

Send everyone home to “telework” in an effort to stop the flu from spreading

For employers, getting hit with a pandemic flu is one thing but getting slapped with a labor law violation on top of it for noncompliant sick leave policies can make things go from bad to worse.

To ensure that your company stays compliant with the Fair Labor Standards Act while still doing as much as you can to maintain “business as usual” during a flu pandemic, employers should consider the following:

Employees can do work outside of their job descriptions: When employees are out sick, employers may require healthy employees who are at work to pick up some of their ill colleagues responsibilities (even if they fall outside of the employees’ job descriptions). Just as long as the employees in question are 18 years of age or older, the FLSA places no limitations on the type of work they may be required to perform.

Employees must be paid the same hourly rate, regardless of whether they work on site or from home: To control the spread of a pandemic infection, employers may require employees to work from home. If your company decides to make these requirements, you, the employer must pay all hourly workers the same rate for all hours they worked from home as you would if they had worked these hours on-site. Also, all salaried employees must be paid their full salary for any week in which they performed any work (subject to certain exceptions).

Employees who are required to work from home but cannot do not need to be paid: In the event that you shut down your workplace, thus requiring all employees to telecommute, you are only required to pay employees who are able to perform their job duties from home. The FLSA only requires employers to pay employees for hours they actually worked (whether at home or on site). That said, you should ask yourself if this will have an adverse impact on certain groups of employees. For example, if working at home requires a computer and internet access, is one group of employees much more likely to have these and thus be able to work at home? What can you as the employer do to help give equal access to the opportunity to work at home?

Letting employees “volunteer” during a personnel shortage can cause you a lot of trouble: This is because the FLSA has very strict requirements governing when you can and cannot allow nonexempt employees to volunteer time. Generally, all nonexempt hourly employees working for private sector, for profit companies, must be paid at least a minimum wage for all hours they work.

Legislators introduced a bill last week that, if passed, would require employers to provide at least five paid sick days to employees sent home (and told to stay home) with a contagious illness. The bill is called the Emergency Influenza Containment Act and was introduced by Representative George Miller (D-CA), chairman of the House Education and Labor Committee.

If signed into law, the Emergency Influenza Containment Act would take effect 15 days after being signed and expire after 2 years.

Who would be impacted?

The Emergency Influenza Containment Act would apply to businesses with 15 or more employees. Only employees who are sent home with a contagious illness will be eligible for the five paid sick days. Employees who choose to stay home on their own would not be guaranteed paid sick days.

Why the Emergency Influenza Containment Act?

According to Representative Miller, the motivating factor behind this bill was the fact that over 40 million workers do not have paid sick days.

Data from the Bureau of Labor Statistics reveal the following:

39% of all private-sector workers don’t have paid sick days

Of the lowest 25% of wage earners, 63% don’t have paid sick days

On top of all this, Center for Disease Control (CDC) statistics show that a sick employee at work infects one in ten of his or her co-workers.

Will the Act really serve its purpose?

Or will more employers opt to let workers with a contagious illness simply stay at work because they can’t afford to pay them for five days of absence?

When employers simply cannot afford to lose vital employees for 5 days at a time, the best course of action to take is prevention. Encourage employees to wash hands frequently, cover their mouths when they cough or sneeze and keep all surfaces in the office germ free.

Here’s what one company is doing:

To keep up the staffing levels necessary for “business as usual” and keep employees out of work for shorter lengths of time, Fidelity Investments is offering employees just-in-case prescriptions of Tamiflu. They’ve contracted with a physicians group that will come to Fidelity’s headquarters and do screenings to see if (given each employee’s medical history) it would be appropriate to prescribe Tamiflu.

This could help employees by lessening both the duration and the severity of their flu (when taken on the first day of illness) so they can return to work sooner.

07/15/2009

In these tough times especially, it is highly recommended that employers have set guidelines in place to govern severance pay.

For employers and HR professionals that may not have a severance policy in place, we’ve answered a few questions for you on what you should know about severance. Specifically, we’ll touch on when you need to pay it, to whom you need to pay it, and when you need to spell out your policy in writing.

Are we required to pay severance?

Unless you have a contractual obligation (i.e. a collective bargaining agreement or an explicitly written promise to pay severance in employee handbooks or policy documents), you are generally not required by law to pay severance.

Who should be eligible for severance?

Generally speaking, severance packages should be given to employees as assistance to help them cover expenses while they are searching for a new position after being involuntarily terminated for reasons beyond their control. Examples are employees who were laid off as a result of a plant closure or whose jobs were eliminated entirely.

Limiting eligibility for severance pay to full-time, permanent employees who meet length of service requirements (such as a one year of service minimum) is common in many organizations.

Severance should not generally be offered to employees terminated for performance reasons or in most cases, for violating work rules. Also, it should not be offered to employees who voluntarily terminate employment (or refuse a transfer) for reasons other than a major pay cut or significant negative changes in working conditions.

Do we need a written severance policy?

Since most severance plans are covered by the Employee Retirement Income Security Act (ERISA), they should generally be in writing. Plans are subject to ERISA when they involve a significant amount of discretion on the part of the employer to determine employee eligibility and the amount of severance benefits payable to employees for different triggering events. This type of plan is contrasted to one that is applicable to a single large-scale event (i.e. a major plant closure).

In terms of what goes in the employee handbook, some employers keep their written severance policies short and sweet, leaving the detailed benefits-related information to the benefit plan material. They then include a reference to the benefit plan material in the handbook and a call to action for employees to direct any inquiries they might have to the HR department.

In any and all handbook references to severance pay, it’s vital that you make it clear that not all employees will meet the eligibility requirements necessary for automatic entitlement to severance pay. You should also make sure you have an attorney review your severance policy to make sure it complies with federal and state laws.

How about training supervisors to listen to employees’ initial complaints and take them seriously?

This is a nearly surefire way to keep your company out of trouble because when employees don’t think their supervisors are taking their sexual harassment complaints seriously, they are likely to complain to someone outside of the company. The majority of the sexual harassment claims filed with the EEOC in 2008 were based on supervisors not responding to initial complaints.

Here are a few other important things to remember about sexual harassment in the workplace.

Sexual Harassment is more than just “asking another employee for sex”:

In order to effectively respond to sexual harassment complaints and avoid costly “misunderstandings”, employers need to have a broader understanding of what constitutes sexual harassment.

Many supervisors believe that sexual harassment only occurs in the context of an employee explicitly “asking another employee for sex”. Although these are serious issues that must be addressed immediately, they represent only the tip of the iceberg. The EEOC states that sexual harassment includes:

“unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment”

Good employees can do not so good things:

Employers should not be reluctant to reprimand a high-performing and well-liked employee if an investigation of a sexual harassment complaint about them finds some level of truth for the complainant. Some employers might fear that the top employee’s performance or retention might be adversely affected by delivering a reprimand or other consequence for their prohibited actions.

Despite any concerns that they might have, employers should not allow an employee to victimize anyone else in the workplace for reasons of business convenience. No matter how much revenue a top performer generates for a company, that can all be paid out in the legal costs and settlement of a serious sexual harassment case.

It doesn’t just happen to women:

In 2008, the EEOC received 13,867 sexual harassment charges, 15.9% of which were filed by males. When creating and enforcing a sexual harassment policy, employers should take this statistic into account.

The Victim does not necessarily have to be the person harassed:

According to the EEOC, a victim of sexual harassment could be “anyone affected by the offensive conduct”.

The best remedy is prevention:

The best remedy for sexual harassment related issues is prevention and prevention starts with good communication. Clearly communicate to employees what constitutes sexual harassment in your workplace and that none of it will be tolerated.

Some things that employers can do to be proactive about sexual harassment in the workplace is to clearly communicate their company’s sexual harassment policy, and make it easily accessible to all employees. They should also provide employee training and establish a complaint procedure that provides as much confidentiality as possible to the employee that complains, yet addresses the issue immediately.